SUBJECT:

Richard Wiesemann,

Petitioner,

The Inspector General.

DECISION

The Inspector General (I.G.) notified Richard Wiesemann (Petitioner) that he was being excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. � 1320a-7(a)). Petitioner's exclusion was based upon his conviction of a criminal offense related to the delivery of an item or service under the Medicare or Medicaid programs. Section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B) provides that the minimum period of exclusion for such offenses is five years. For the reasons stated below, I sustain the I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years. Petitioner's request for a waiver of the exclusion is not before me.

I. Procedural History

After considering the submitted arguments and evidence, I find that summary judgment is appropriate, and no hearing is necessary in this case, for a full and fair disposition. This is because there are no relevant material facts in dispute.

II. Applicable Law and Regulations

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health & Human Services (Secretary) is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary has, by regulation, limited my scope of review to two issues: (1) whether there is a basis for the imposition of the exclusion; and, (2) whether the length of the exclusion is reasonable. 42 C.F.R. � 1001.2007(a)(1). I cannot consider whether a waiver of exclusion is appropriate in any particular case.

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid. Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years, unless specified aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See also 42 C.F.R. �� 1001.102(a), (b), and (c). Only if the aggravating factors justify an exclusion of longer than five years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. �� 1001.2007(c), (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. �� 1005.15(b), (c).

III. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the admitted exhibits:

1. During the time period relevant to this case, Petitioner owned and operated Unity Home Health Care and Oxygen (Unity). I.G. Ex. 2, at 3.

2. Unity participated in the Montana Medicaid program. I.G. Ex. 2, at 2.

3. Petitioner, through Unity, submitted 130 claims for feeding supplements that were neither ordered from the product supplier nor supplied to Medicaid beneficiaries. I.G. Ex. 2, at 3.

4. The Montana Medicaid program paid Petitioner approximately $53,500 for these supplements. I.G. Ex. 2, at

5. On June 27, 2002, an Information was filed in the Montana First Judicial District Court, Lewis and Clark County, charging Petitioner with theft, based on the submission of claims for the feeding supplements that were not supplied to Medicaid beneficiaries. I.G. Ex. 3.

6. On November 5, 2002, Petitioner pleaded guilty to one count of felony theft, based on the facts stated in the Information and the Motion and Affidavit in Support of Motion for Leave to File an Information. I.G. Ex. 4, at 4.

7. On March 3, 2003, Petitioner's guilty plea was accepted by the Montana First Judicial District Court, Lewis and Clark County. I.G. Ex. 5.

8. Petitioner's sentence was deferred for six years. I.G. Ex. 5, at 2.

9. The deferral of Petitioner's sentence was conditioned on his payment of restitution, in the amount of $53,543.20, to the Montana Medicaid program, payment of fines and fees, and supervision by the Department of Corrections. I.G. Ex. 5, at 2.

IV. Conclusions of Law

1. Summary judgment is appropriate in this case because there are no material facts in dispute.

2. Petitioner was convicted, within the meaning of the Act, of a criminal offense related to the delivery of an item or service under the Medicaid program. Act, section 1128(a)(1) (42 U.S.C. � 1320a-7(a)(1)).

3. Due to his conviction, Petitioner must be excluded from participation in any federal health care program for a minimum period of five years, pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)).

V. Discussion

Summary disposition is appropriate where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary disposition must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c). There are no issues of material fact in dispute in this case. Petitioner has accepted the statement of facts as alleged by the I.G.

The I.G. has proven a basis for the exclusion. The regulations direct the Secretary to exclude:

. . . [a]ny individual or entity that has been convicted, under Federal or State law, of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program.

Act, section 1128(a)(1).

Petitioner was convicted of a criminal offense under State law. Under section 1128(i)(3) of the Act, an individual is considered to have been "convicted" when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State or local court. Under section 1128(i)(1) of the Act, an individual or entity is considered to have been "convicted" when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court. In this case, Petitioner pleaded guilty to one count of felony theft as specified in Mont. Code Ann. � 45-6-301(1)(a) (2002). I.G. Ex. 5, at 2. The judgment of conviction was entered against him by a judge of the Montana First Judicial District Court, Lewis and Clark County. I.G. Ex. 5. Therefore, the Petitioner was convicted of a criminal offense under State law.

The criminal offense for which Petitioner was convicted was related to the delivery of an item or service under Title XVIII or a State health care program. The Information to which the Petitioner pleaded guilty alleged that he had:

. . . purposely or knowingly obtained or exerted unauthorized control over money belonging to the Montana Medicaid Program (Program) with the purpose of depriving the Program of the money. The Defendant obtained the money by submitting claims to the Program for liquid feeding supplements that were not provided.

I.G. Ex. 3, at 1.

By the express terms of the Information to which Petitioner pleaded guilty, the criminal offense was related to the delivery of an item or service under a State health care program.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years as set forth in section 1128(c)(3)(B) of the Act which states:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall not be less than five years . . .

When the I.G. imposes an exclusion for the minimum mandatory five-year period, the issue of the length of such exclusion is not considered. 42 C.F.R. � 1001.2007(a)(2).

VI. Conclusion

For the foregoing reasons, I sustain the I.G.'s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of five years.

Anne E. Blair

Administrative Law Judge